The Labor government has given a ‘firm’ view to the parliamentary inquiry on war powers: don’t disturb the executive’s prerogative for sending Australia to war.

But the reference letter to the committee says there’s room for more parliamentary scrutiny.

My positive reading of the two positions is that the inquiry has the chance to use parliamentary precedent to strengthen the Westminster system. Drawing on a series of columns I’ve written on the war powers, here is a four-part plan.

1. Codify parliamentary precedent to establish a set of conventions: use conventions, not law, to give parliament a proper role in Australia’s way of war.

Invoking precedent, convention and tradition is a means to establish legitimacy, set standards and guide future actions.

A small example is a mythic sign on a university noticeboard: ‘College tradition is that students do not walk on the grass in the main quadrangle. This tradition begins today.’ The sign has AAA provenance (apocryphal and anonymous), yet it illustrates the truth that tradition is a useful tool.

As the historian Eric Hobsbawm noted, ‘“Traditions” which appear or claim to be old are often quite recent in origin and sometimes invented.’

The Joint Committee on Foreign Affairs, Defence and Trade doesn’t have to invent tradition, merely codify precedents set by previous prime ministers and governments. The purpose is to make these precedents conventions to be followed by future governments.

Turning to convention is a means around the two major parties’ aversion to changing the law, to give parliament a place in the use of the war powers.

The call for both houses of parliament to vote on war crashes against the fact that Australian governments seldom command a majority in the Senate. Neither Labor nor the Coalition will give another iota of power to the upper house.

A convention for a vote in the lower house on deploying the Australian Defence Force already exists. The inquiry should note the precedent in the House of Representatives and call on future governments to follow it.

2. A vote of the House of Representatives: adopt the precedent set by Prime Minister John Howard with his ANZUS and Iraq resolutions.

The ANZUS precedent is the eight-point motion that Howard moved in the House on 17 September 2001, invoking the ANZUS Treaty following the 9/11 terror attacks on the US.

The motion didn’t go to the military actions that followed, but set out fundamental arguments for why Australia would act. That’s the place to start for all future motions on military action: state the principles and purposes.

A resolution for war should be considered by the House even if—as happened with Iraq—the government has already sent Australia’s military to fight.

Howard created the National Security Committee of cabinet, which is established at the heart of government. In the same way, the Howard precedent on a House resolution for war—before or after deployment—should be treated as a valuable convention in our Westminster system.

Governments are made in the House of Representatives, while the Senate is the house of review. The House of Representatives is where the vote on war should happen.

3. The mission and the means: set out the aims, the role of the ADF, the risks and Australia’s objectives—following the precedents of prime ministers Tony Abbott and Julia Gillard.

Howard’s ANZUS and Iraq resolutions are starting points for future deployment resolutions. Building on the Howard convention, the government should present the House with a motion that offers answers to the fundamental questions posed by Abbott on 1 September 2014.

In a statement to parliament on the threat that ‘the death cult’ Islamic State posed to Iraq and Syria, Abbott said that if a request for Australian military help in Iraq came from the US and the Iraqi government, it would be considered against these criteria: ‘Is there a clear and achievable overall objective? Is there a clear and proportionate role for Australian forces? Have all the risks been properly assessed? And is there an overall humanitarian objective in accordance with Australia’s national interests?’

For a war against another nation, rather than terrorists, other big questions could be added to the Abbott criteria: What is the scope of the commitment? What are the aims? What forces are needed? What would victory would look like? What is the exit strategy?

Add to the Abbott points the set of questions outlined by Gillard in her Afghanistan speech on 19 October 2010. Gillard told parliament that she would ‘answer five questions Australians are asking about the war’:

– why Australia is involved in Afghanistan;
– what the international community is seeking to achieve and how;
– what Australia’s contribution is to this international effort—our mission;
– what progress is being made; and
– what the future is of our commitment in Afghanistan.

The resolution that goes to the House, even if the government has already ordered war, should address those fundamentals—the aims, the means and the ends.

4. Answer to parliament and the people: require the prime minister and defence minister to give parliament (and Australia) regular formal reports on the conflict. Revive the convention that major government statements on Australian strategy and defence should be presented and tabled in parliament.

A significant precedent in Gillard’s Afghanistan speech was her promise of regular formal statements to parliament: ‘[T]oday I announce as Prime Minister that I will make a statement like this one to the House each year that our Afghanistan involvement continues. This will be in addition to the continuing ministerial statements by the Minister for Defence in each session of the parliament.’

While building fresh conventions on parliament’s role, it’s time to revive conventions that have been so ignored they’ve fallen into disuse. Major government announcements on defence and strategy should be presented and tabled in parliament. That was the convention that prevailed from the first defence white paper in 1976, then in 1987 and 1994, and again when Howard presented his defence white paper to the House in 2000.

In this century, however, parliament is bypassed in order to serve the TV cameras.

Defence white papers haven’t been presented in parliament. Instead, they’ve been unveiled on a navy ship at Garden Island in Sydney (Kevin Rudd), in an air force hangar in front of a fighter jet and two lines of ADF uniformed personnel (Gillard) or at the Australian Defence Force Academy (Malcolm Turnbull). Turnbull’s 2017 foreign policy white paper was released in the foyer of the Department of Foreign Affairs and Trade, while Scott Morrison went to ADFA to release the 2020 defence strategic update. The politics and pictures of these performances were presidential, not parliamentary.

Governments have developed an absent-minded habit of not bothering to make policy documents also papers of the parliament.

A test of the government’s view of parliament will be whether the defence strategic review to be released next year is presented to the TV cameras or tabled and debated in the House of Representatives.

The parliament must do more work if it’s to have more say and play a more consistent and continuing role in thinking about the nation’s defence. To have a greater voice in the Australian way of war, parliament should do more of the thinking.

The joint committee should hold regular hearings to review Australian military missions (monitor the checklist). And building on Senate estimates, in each parliament the joint committee should review Australian strategy and defence equipment programs.

Taking recent precedents and codifying them as conventions means the parliament could test policy, shape thinking and record the detail that makes the history. Building such tradition grounds the issues of trust and democratic legitimacy where it belongs, in our parliament.

In war, a government must convince its own people; it must give reasons for the sacrifice, make sense of the death. As ever, parliament must be where the power and the policy meet the people.

In his recent public address at ASPI (excerpted here on The Strategist), Senator Nick Xenophon argued for parliament to play a greater role in the authorisation of military action. His argument turned, in part, upon a now familiar distinction:

‘In requiring Parliamentary approval, it is necessary to distinguish between ‘wars of choice’ and ‘wars of necessity’. Wars of necessity refer to military actions taken in self-defence and require the use of rapid and/or covert military force… no Australian military actions ought to occur without parliamentary authorisation, except in self-defence.’

In essence, that would amount to a parliamentary veto on the use of force in almost all cases where Australia has previously used military force. In World War 1 we weren’t acting in self-defence—except, perhaps, of the British empire. Nor were we doing so in World War 2, at least not before the Japanese attacked Australia directly. The Korean War, the Vietnam War, the two Iraq wars, the war in Afghanistan, and even the current role that we’re playing in Iraq and Syria, don’t seem to fit well under a self-defence heading.

But I’m unconvinced that the distinction between wars of necessity and wars of choice is especially useful. Under that rubric, for example, all actions in support of an ally become mere wars of choice. That seems like odd terminology. Isn’t the signalling of a degree of obligation the whole point of making an alliance? By allying ourselves with other countries, aren’t we effectively saying that we accept an element of automaticity to our involvement in conflicts where they are attacked? (Not in conflicts where they attack others, note.) If we sign an alliance under which we accept that obligation, it sounds more than a little odd subsequently to claim that we take all such treaties as denoting mere wars of choice. If we thought that, why did we sign a treaty?

Moreover, I’m not sure I’m comfortable with the notion that wars of necessity are just wars of self-defence. In World War 2, even before the Australian continent was attacked, we confronted a group of adversaries who wanted fundamentally to reshape the world. Even if they hadn’t attacked Australia, I don’t see how we could have sat that one out. If the Axis powers had won, we’d have been living in a different world—one shaped by autocratic great powers with no time for democracy, liberty or rights. Was our participation an act of choice, when the war itself was a global conflict fought—at the abstract level—over the freedom to make choices? The notion that strategic necessity begins only at our own coastline strikes me as deeply flawed. We have to think about consequences, not geography. Even in relation to distant events, some consequences are so unacceptable that Australia finds itself committed to conflict.

None of the above is meant to deny that some wars are ‘wars of choice’. Some are. And the reasons for choosing—to take part, or not to do so—are typically complex. After all, decisions to go to war aren’t made just on the basis that some people will die—they’re made on the basis that military action is an instrument of statecraft which helps to shape the international environment. Sometimes the threat of military action is employed as part of a deliberate strategy to drive an adversary down a different path. Is the Australian parliament better equipped to make those choices than the executive? Certainly, it’s more politically diverse. But that’s part of the worry: on any question on which the major parties were divided, the cross-benchers in the Senate would get to determine Australian strategic policy. And I don’t see that they’re better equipped, nor more entitled, to do so than the government of the day.

Part of the complexity in deciding to undertake military action lies in deciding how we’ll undertake it. Article 4 of the ANZUS Treaty says we’ll ‘act to meet the common danger’. There are two constraints on action. The first one, which critics typically point out, is that any such action must be the result of an ally working through its due constitutional processes. But the second—often overlooked, but probably the more significant—is that the treaty doesn’t say how we should act. In support of our ally we could choose to send either the whole ADF or one especially enthusiastic private and his dog—or any force package in between. That’s where choice lies, even in relation to alliance commitments. So, does parliament have some special skill in devising force packages? No—it’d largely be the prisoner of the advice it received from the executive about such matters.

Overall, then, I’m not a fan of separating wars into ones of necessity and ones of choice. I think the language blinds us to the notion of alliance obligation, devalues the utility of military force as an instrument for shaping international outcomes, and prioritises self-defence and geography over the more useful metric of consequences when we’re committing military forces to action.

The Canberra ministerial adviser—the Minder—is 43 years young. The Minder is the strongest new creation of Oz politics, often more important than the public service in the way policy and politics gets done.

The idea of the political staffer in the ministerial office as more powerful than the public service at key moments is striking. Yet in a couple of decades it has become the reality.

Ponder that claim: the 400-plus ministerial staffers in the executive wing of Parliament throw more weight than the massed ranks of public servants in Canberra and all across Oz.

The public service runs the show but the Minders do a lot of steering. That’s a power shift that has changed the system and how it works.

Those who administer don’t admire those who convey the minister’s orders. Little wonder that a Treasury Mandarin, John Stone, attacked the Minders as ‘meretricious players’.

Stone’s fellow Mandarins have used many worse epithets. The Minders occupy space that once was the exclusive terrain of Mandarins.

The Minders have shifted power in Canberra in ways that greatly hurt the public service. And greatly helped the Minders’ political masters. That’s why the political staffer quickly settled close to the heart of the Canberra system. If this is a transplant rather than a Westminster evolution, then the operation worked.

The Minder sits at the intersection where politics meets power, the Parliament meets the Executive. The presidential pretensions of the prime ministership are fuelled and carried by the Minders who throng the ministerial wing.

The Minders are the creation and creatures of the Executive; they live and die at the Minister’s pleasure. They have few rights but great privileges. Access to power comes by standing on a permanent trap door. The Minister can hire anyone (as long as the PM’s office gives a tick) and can dismiss in an instant.

This column launches a series on the Minders. It will be based on five Canberra facts.

The first two facts are so intertwined they reflect one reality:

1. The Minder is a shadowy eminence, operating beneath the cloak of ministerial power.
2. The Minder is untouchable, accountable neither to Parliament nor the public service.

The third point is contested and controversial, varying across ministers and issues, but it’s the fact stated at the head of this column.

3. The Minder is often more important than the public service in the way policy and politics gets done.

Facts four and five are conclusions to be drawn from the consistent actions of different governments over 43 years. The political consensus decrees:

4. The Minders are a permanent feature of the system.
5. Minders are essential to ministers and the functioning of the executive.

Taking those facts as the reality, this series will come neither to praise nor bury, merely to acknowledge a significant element of the way Australia does government.

Any praise would be atypical. Minders may be essential but usually they are dragged from the shadows to be blamed and whipped.

The Minders are seldom mentioned publicly without being spat upon. Paul Keating scorned those around Bob Hawke as the ‘Manchu Court’. Keating, who had his own set of Minders, was putting his finger on what matters about courtiers—the power they sit close to and the power they can guide.

The spleen and spite directed at staffers over the decades should be read as a backhanded acknowledgement of their significance.

To give the flavour, here’s Keating on his 1986 battle with Hawke’s Manchu Court, consisting of Peter Barron, Bob Hogg and Ross Garnaut.

‘They would sit like courtiers around him, and I would come to Bob’s office and he’d be hunched at his desk, and he’d be saying “Ross says…” or “Peter says…” and he’d never finish a sentence and they’d pipe up. And on one occasion I spun on them and said, “You speak when you’re spoken to.” One of them said to Hawke, “Are you going to let him speak to us like that?” and Bob says, “Oh, don’t be like that. Don’t be like that.” I’d be brought before them knowing they’d be passing on opinion to Bob after I’d left, and they’d intersperse my comments with their own. They always sat in the same position in that narrow office of Bob’s in the old Parliament House. I’d be sitting in front of his desk, and their three chairs would be set a little off the wall. You were appearing before the court and the courtiers would say what they thought of you, usually after you’d left.’

Draw a few key facts from this vignette.

Staffers have influence because of the intimate relationship with their political masters. Proximity equates to power. Proximity gives the staffer the ability to shape their master’s thinking and often to have the last word on a debate or decision.

The minders are political staffers.

A later piece in this series will define some differences between what I call Political Minders and Policy Minders. The Policy/Political is a useful distinction yet deeply artificial because Minders must dance to both drums. While characteristics and demands differ across and within offices, Minders are all the same species and all carry political stripes.

The Minders are the small animals inside the political cage with the politicians.

The public service also serves in the zoo—theoretically standing just outside the cage. Bureaucrats are often a few steps away from the action in the cage when the claws fly and the meat is killed.

The scene Keating describes when a Prime Minister, a Treasurer and three Minders argued the toss is something many senior public servants have witnessed. And top public servants have always argued their case with great vigour—this is Australia, after all.

Yet even the most confident and combat-hardened public servant rarely needs to be told, ‘You speak when you’re spoken to’.

The public service understands there are things done and said inside the cage where it isn’t their place to go. That shadowy place is where Minders have stood since their creation by the Whitlam government in December 1972. To be continued.